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ICBC Injury Claims and Mitigation of Damages

One of the principles of tort law is that of mitigation.
If you are injured through the fault of another you have a duty to take reasonable steps to minimize your losses.  For example, if your doctor makes treatment recommendations and you refuse to follow these this can result in a ‘failure to mitigate’ argument by an ICBC Defence Lawyer.  If such an argument succeeds the court can reduce the amount of damages according to the severity of the failure to mitigate.
Reasons for judgement were released today discussing and illustrating this principle.e   In today’s case (Korosic v. Maitland) the trial judge found that the Plaintiff failed to mitigate her injuries and reduced damages accordingly.  The key discussion was set out at paragraphs 122-132 which I reproduce below:


[122]        The defendant contended that Ms. Kosoric had a positive duty to mitigate and, in failing to perform the strength and conditioning exercises recommended by her physicians and physiotherapists, she could have reasonably avoided some part of her loss.  The defendant agreed that they bear the onus of proof on this issue. 

[123]        The concept of mitigation was discussed in Graham v. Rodgers, 2001 BCCA 432, 90 B.C.L.R. (3d) 69, leave to appeal to ref’d [2001] S.C.C.A. No. 467.  The purpose of mitigation is to limit the recovery of an injured party based on their failure to take reasonable steps to minimize or limit their loss: see para. 35.  As the defendant submits in their argument, a plaintiff has a positive duty to mitigate in personal injury actions; however, if a defendant argues a plaintiff may have reasonably avoided some of the loss, they bear the onus of proof: see para. 35. 

[124]        In situations where a plaintiff has not followed a course of recommended medical treatment, a defendant must prove two things: the plaintiff acted unreasonably in eschewing the recommended treatment, and the extent, if any, that the plaintiff’s damages would have been reduced had they acted reasonably: Chiu v. Chiu, 2002 BCCA 618, 8 B.C.L.R. (4th) 227 at para. 57, citing Janiak v. Ippolito, [1985] 1 S.C.R. 146.   In Chiu, the court of appeal overturned the trial judge’s decision to reduce damages by 10% on account of the plaintiff’s failure to mitigate his damages.  In overturning this part of the decision, the court stated that the defendant did not pursue cross examination of the plaintiff with respect to his failure to engage in counselling, nor did the defendant adduce any medical evidence demonstrating the consequences of the failure, on the part of the plaintiff, to obtain more counselling.  There was simply no evidence indicating the effect of counselling and whether it would have accelerated the plaintiff’s recovery or had other positive impacts. 

[125]        Conversely, in Briglio v. Faulkner, 1999 BCCA 361, 69 B.C.L.R. (2d) 122, rev’g , in part, 1996 Carswell BC 1818, the Court of Appeal upheld the trial judge’s decision to reduce the damages by 10%, as a result of the plaintiff’s failure to engage in a recommended exercise program.  At trial, the judge accepted medical evidence which stated that a structured exercise program would have assisted in the improvement of the plaintiff’s fibromyalgia condition.  The plaintiff’s failure to engage in such exercise “likely had some negative effect on her condition”: trial decision at para. 148. 

[126]        In Kero v. Love, 90 B.C.L.R. (2d) 299, CarswellBC 179 (C.A.), the Court of Appeal upheld a jury’s decision to deduct a 25% contingency ($40,000) from a damages award.  The court found that it was reasonable for the jury to make such a decision in light of the plaintiff’s failure to follow a prescribed exercise regime or seek alternative employment which would have been less stressful on his back. 

[127]        In the instant case, the defendant submitted that Ms. Kosoric failed to mitigate her loss through her failure to follow and adhere to an exercise routine, as outlined by her physicians and physiotherapists.  The defendant further argued that Ms. Kosoric was continually reminded of the need to continue with an exercise program and the likely (positive) effects of such a program.  Ms. Kosoric acknowledged, in cross examination, that her physiotherapist had told her that her spine strength could improve through exercise, which would assist her college studies with less disruption.  Furthermore, Drs. Mitha and le Nobel both instructed Ms. Kosoric, on a number of occasions, to engage in regular strength and conditioning exercises, as it was important for her recovery. 

[128]        Both physiotherapists who submitted reports for trial also made similar recommendations.  In his report, Mr. Rizzardo noted that he instructed Ms. Kosoric to adhere to an exercise program “constantly”, even when she was feeling “close to normal”.  Similarly, Ms. Guglielmini stated that Ms. Kosoric should continue with an exercise programme, involving three sessions per week over a 12 to 15 week period. 

[129]        In the period following the Accident, I acknowledge Ms. Kosoric’s life was difficult, in the sense that she had experienced a traumatic incident that had mental and physical impacts, her mother was diagnosed with cancer and she commenced a difficult and demanding educational program.  However, this does not absolve her of her duty to take reasonable steps to minimize her loss, particularly in light of the fact that the recommendation was conservative and would likely lead to reduced difficulties at school, work and in life generally.  I note that when Ms. Kosoric did perform exercise, there was no aggravation of her injuries nor did it cause additional pain. 

[130]        There is evidence that Ms. Kosoric did perform some exercise since the Accident, however, the evidence also demonstrates this was done infrequently over the past five years.  In her evidence, Ms. Kosoric admitted that the recommended exercise program was not a high priority for her during this period. 

[131]        Based on the evidence, I conclude that following a regular exercise programme would have had positive effects on Ms. Kosoric’s symptoms.  Since the medical evidence does not state the precise effectiveness of exercise, I must therefore determine what role this would have played in improving her symptoms: see Briglio, trial decision, at para. 149. 

[132]        I will take into account the plaintiff’s failure to adhere to an exercise routine in my assessment of non-pecuniary damages.

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